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Writs granted on arbitration, slayer statute and workers’ comp issues

The case of a Norfolk judge who refused to enforce an arbitration clause in a nursing home contract is among the more interesting of the first flush of petitions for appeal granted by the Supreme Court of Virginia after its writ panel session earlier this month.

We look at the case, Medical Facilities of America Inc. v. Lige, Record No. 100854, in Monday’s VLW. Suffice it to say here that circuit courts across the state have split on the enforceability of provisions in admission contracts to nursing homes that purport to compel arbitration of any disputes.

Other civil cases the court has agreed to hear include:

Bell v. Casper, No. 101004, and Casper v. Lynn, No. 101012, which examine an unexpected, if not unintended, consequence of 2008 amendments to the Virginia Slayer Statutes, Virginia Code Ann. §55-401 et seq. A man killed his mother in 2005 but wasn’t convicted until 2009. Under the old law, the slayer’s grandmother would inherit the mother’s estate; under the new one, his children would. A Henrico County circuit judge ruled that the old statute applied.

David White Crane Service v. Howell, No. 100981, a worker who was injured on a construction project would have been a statutory employee of a subcontractor if the sub had had workers’ compensation coverage. Because it did not, a Southampton circuit judge ruled that the worker could maintain a negligence action, even though the worker had received workers’ comp benefits from his employer. The sub said the ruling is inconsistent with Virginia Code § 65.2-307.

Kaltman v. All American Pest Control Inc., No. 092541, plaintiffs contended that they suffered personal injuries because an employee of a pest control company used the wrong insecticide on their home. The trial judge in Fairfax said the claim was based on a breach of contractual duties, which precluded any recovery for negligence.

Landrum v. Chippenham and Johnston-Willis Medical Centers, No. 101102, a Richmond circuit judge entered summary judgment for against a medical malpractice plaintiff after her attorneys missed two deadlines on the designation of experts and their reports because a local attorney did not sign the documents in question. The plaintiff contends dismissal of the case was an excessive sanction.

Lewis v. Monument City Properties LLC, No. 101210, a tenant contends that a Richmond circuit judge erred in setting aside a $95,000 jury verdict against a landlord because there was no expert testimony that a stairwell railing was unsafe.

Livingston v. County of Fairfax, No. 101006, a challenge by property owners to a ruling a Fairfax judge that damages from a one-time episode of flooding cannot by the basis of an inverse condemnation suit.

Zinone v. Lee’s Crossing Homeowners Association, No.101085, a contention by the member of a Loudoun County homeowners association that a Loudoun County judge erred in upholding building restrictions that she alleged were imposed improperly by the developer of her neighborhood.

The court also granted three criminal appeals:

Saunders v. Commonwealth, No. 100906, a contention by a juvenile defendant that he could not be sentenced by a jury even though he had been convicted and sentenced as an adult for an earlier felony in Lynchburg. He said Code § 16.1-271 does not specifically mention the possibility of jury sentencing when it says that juvenile convicted and tried as an adult shall be “considered and treated as an adult” for any subsequent felonies. Code § 16.1-272, which says judges shall sentence juveniles tried as adults, is the proper statute, he contends. Here’s the Court of Appeals opinion.

Smith v. Commonwealth, No. 101357, for hard-core criminal procedure junkies only. Should the penalty for failing to file a transcript on time be treated as a waiver of the issue addressed in the transcript or dismissal of the appeal? Court of Appeals Judges Randolph A. Beales and William G. Petty wrote a total of 30 pages on the distinction. The Court of Appeals opinion is here.

Howard v. Commonwealth, No. 100912, a speedy trial case in which the defendant contends that continuances granted on the court’s motion and because of the failure of the prosecution to comply with a discovery order should not have tolled the statute. The Court of Appeals opinion is here.

And then there are the sexually violent predator cases, which technically are civil proceedings although the defendant is locked up on the basis of criminal conduct.

Commonwealth v. Amerson, No. 100840, the AG’s office contends that a Virginia Beach judge went off the reservation in talking to an out-of-state probation officer over the telephone off the record and out of the presence of the defendant before granting him a conditional release.

Wheeler v. Commonwealth, No. 100123, whether the trial judge in Chesterfield County erred in barring the defendant’s expert from testifying at a conditional release hearing after a jury concluded that the defendant was still an SVP. The defendant can’t be but so happy, however. The panel rejected his request for a writ on the exclusion of the expert in the jury trial because he had failed to participate in an early stage of the SVP process.

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